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K-4 Visa.

Tampa, FL | January 30, 2013 4:19am

I'm a USC and my wife is a Chinese national that just got her green card this past November.She had just travel back to China two weeks ago(January 2013) to try and bring her son (my stepson) over. Her son is 13 yrs. old. I file a I-130 petition on his behalf back in December of 2012. USCIS send me a notification letter acknowledging receipt of my petition on the 10th of December and are currently reviewing his application. My wife is there waiting with my stepson in China for "news" from the American consulate in Guangzhou. We have no idea how long the wait is gonna be and weather I should file a K-4 visa for him so that he and my wife can come back here immediately. Please advise!

I don't believe filing a K-4 will speed things up for you. When you file an I-130, it takes USCIS a few months to make a decision. Only after their decision will his file be transferred to the National Visa Center in New Hapshire to gather all documents in anticipation of his interview at the Consulate in China. The whole process could take a year or more. Your wife should either return to the US and go back to China only once his interview is scheduled, or be ready to remain there for some time until the whole process goes through.

[This answer is for general purposes only; it does not constitute advice and does not establish an attorney-client relationship.]

Asker

Posted January 30, 2013 4:58am

Thank-you for your advice. On the Form I-, 797C ( which I received from USCIS) and in the column of Preference Classification, was
printed 201B INA MINOR CHILD OF USC. Is the wait still gonna be more than a year ?

Most of the time a K-4 makes no sense ... the US Consul in Guangzhou will probably process the immigrant visa faster than the K.

You wife will have to wait ... about the same amount of time as she waited for her visa ... sorry, there is no way to cut corners.

PROFESSOR OF IMMIGRATION LAW for over 10 years -- This blog posting is offered for informational purposes only. It does not constitute an attorney-client relationship. Also, keep in mind that this is an INTERNET BLOG. You should not rely on anything you read here to make decisions which impact on your life. Meet with an attorney, via Skype, or in person, to obtain competent personal and professional guidance.

Asker

If your wife has her green card, you cannot get a K-4 visa for your son. You must obtain a green card for him. He is no longer the son of a K-3 visa holder.

(213) 394-4554 x0 Mr. Shusterman is a former INS Trial Attorney (1976-82) with over 35 years of immigration experience. His response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.

Asker

Your son will have to wait until the I130 that you filed for him is approved and sent for visa issuance at the consulate in Guangzhou. Since your wife is a permanent resident she should make sure not to stay out of the US for more than 180 days at a time without a reentry permit, or she risks being charged with abandoning her residency.

Asker

Posted January 30, 2013 9:15am

Thank-you!

Asker

Posted January 30, 2013 9:28am

Based on your experience in dealing with such cases, what is the approximate "time frame" that you'd tell your client to wait given the fact that on the Form I-797C from USCIS was printed " 201B INA MINOR CHILD OF USC in the Preference Classification column.

You cannot file for a K-4 visa for your step-son since a K-4 can only be issued as a derivative to a K-3 visa and since your wife is not a permanent resident, she is ineligible for K-3 status. You are probably looking at the better part of a year before the child will be issued an immigrant visa since your I-130 has to be approved. An unfortunate situation that could have been avoided by being represented by experienced immigration counsel.

The best thing you can do at this time is to retain an experienced immigration attorney who can make sure that the remainder of the case is handled properly to as to minimize any further delays.

While this answer is provided by a Florida Bar Certified Expert in Immigration and Nationality Law, it is for general information purposes only and an attorney/client relationship is neither intended nor created. You should seek out qualified counsel to review your case and provide you with advice specific to your situation. Call +1-561-478-5353 to schedule a consultation with Mr. Devore.